20 Dec 2017 4:24 PM GMT
Finally, the Bill relating to Muslim women for protection of their rights on marriage has come into the public domain. Section 3 of the Bill states that “talaq-e-biddat” shall be ‘void’ and ‘illegal’. This is followed by consequence of such void action in terms of Section 4 thereof, stating, whoever pronounces talaq-e-biddat shall be punished with imprisonment which may extend...
Finally, the Bill relating to Muslim women for protection of their rights on marriage has come into the public domain. Section 3 of the Bill states that “talaq-e-biddat” shall be ‘void’ and ‘illegal’. This is followed by consequence of such void action in terms of Section 4 thereof, stating, whoever pronounces talaq-e-biddat shall be punished with imprisonment which may extend to three years and fine. In the objects and reasons of the Bill, it is stated that the judgment of the Supreme Court gave a ‘boost to liberate Indian Muslim Woman from the age-old practice of capricious and whimsical method of divorce by some Muslim men’.
The entire basis for the punishment proposed is void action. It is also illegal in the sense that it is not lawful. All those action which has no legal sanctity would obviously become non-legal.
Void action means an action with no force and effect, without legal efficacy, incapable of being enforced or has no legal or binding force.
It is a situation where void action relating to divorce has been made punishable. However, there are situations where marriages are void and they are set out in codified laws. If somebody enters into a void marriage, it has no effect of marriage. Unless, any of the parties alleges mis-representation or cheating, void marriages are not punishable. Reason being void action is non-jurisdictional ‘from the very inception’. That being so, the wife shall continue to remain wife of a Muslim man. However, once the wife makes statement to the police about pronouncing a void action, lodging of an FIR is imminent; the husband would go to jail. Without extending any sympathy to the husband, it is imprudent to think as to how this legislation would be beneficial in favour of the wife and children when the man is behind bars.
One will also have to see the entire issue keeping in mind the concept that the Muslim marriage is based on contract between the marrying parties. Now in the Contract Act also, there is provision of void contracts. The consequences of a void action in terms of contractual relationship shall not lead to a criminal action unless a party wants to prosecute under misrepresentation in IPC.
It appears that the provision for punishment of void action has been taken from Section 494 of IPC where bigamy is declared void, and for that action, punishment is prescribed. That circumstance is completely different because in a settled family life, there is effort to bring another woman, and in addition to the existing wife, the man has started parallel family life, while retaining the existing family life. Hence, after declaring the action of marrying second time as illegal, the punishment is prescribed. Here, the situation is different. The utterance of the husband, intended to get out of a valid marriage, has no meaning after the judgment of the Supreme Court. The wife still remains wife. After the utterance of talaq-e-biddat, if the husband abandons his wife and children, there are legal provisions already in place applicable to all. After such utterance, if the husband and wife are living under the same roof and the wife feels insulted, rightly so, it shall amount to ‘verbal and emotional abuse’, as defined in section 3(iii) of the Protection of Women from Domestic Violence Act, 2005. In fact, after the Supreme Court judgment, utterance of talaq-e-biddat can, at the best, be categorized as emotional and verbal abuse and nothing more. This route shall also keep the marriage alive and shall be beneficial to the interest of the woman and the family.
Muslims, in general, may not be bothered too much about the implications of the proposed enactments considering the Muslim population of the country, as the incidents of triple talaq is too little. The issue is that the entire issue is being played just to demonise the Muslim community at large. There is no bona fide in this move. Much more are the number of women who are being abandoned by their respective husbands. Irrespective of caste, religion, why there is no legislation that if a woman is ignored or abandoned, the action of abandoning shall be good enough to register FIR and lodge the husband in jail.
MR Shamshad is a practicing Advocate in the Supreme Court of India